Mercy for Seena

February 17, 2011 – 6:17 pm

By Legal Eagle

I was distressed to read today about Seena, a 9-year-old asylum seeker from Iran who was orphaned after the boat in which he was travelling sank in December last year. Seena has been in immigration detention on Christmas Island since that time, but was allowed to the mainland the other day for the funerals of the asylum seekers who drowned, including his father’s funeral. His mother’s body has not been recovered. He has extended family in Sydney who would like to care for him, but the Federal Government is proposing to return him to immigration detention on Christmas Island.

Image: Getty - From The Age article linked above

No doubt there are some who say, “Oh well, nothing to be done, the law is that unauthorized arrivals are detained. The law is the law, it must be upheld.” To the contrary, I argue that sometimes it is necessary to create an exception to the rule in circumstances such as these. I believe that principles of mercy may be used to rectify the law where it falls short because of its generality.

Mercy operates when ordinarily someone would be subject to the full force of the law, but this should not occur to a particular person because of his difficult personal circumstances. Mercy is based on propriety, not entitlement. A person can only argue that it is proper and just in the circumstances that an exception ought to be made, but they cannot argue that they have a right to mercy.

John Tasioulas has identified four paradigm cases where mercy may be appropriate:

Where the person’s history and upbringing may have presented obstacles to forming a decent and law-abiding character;

Where wrongdoing has occurred in a context which generates reasons for leniency because there were obstacles to law-abiding behaviour (eg, where a woman kills her abusive spouse);

Where a person is already suffering some grave misfortune which will be cruelly exacerbated if the full force of the law is brought to bear according to his just deserts; and

Where a person has sincerely repented of wrongdoing and made apologies and reparation to those he wronged.

Now, to be honest, I have never been convinced that immigration detention is deserved in the first place. It seems unjust to incarcerate a person who has not been charged with any crime – a violation of the principles of habeas corpus. But even if one believes that immigration detention generally is legitimate, then I believe that mercy can operate to provide an exception to it. A child should not be punished like this.

Clearly Seena falls within category 3 above. He is a child who has suffered a grave misfortune (losing both his parents) and this will be exacerbated if he is returned to detention. There are relatives who are willing to care for him and provide him with love. There is also arguably a touch of category 2: if he has done wrong, he has done so at the behest of his parents and did not really have the same choice that an adult would.

Of course one cannot argue that Seena has a right to mercy, but one can argue that it is proper and compassionate, in the circumstances, to extend mercy to him and allow him to live with his extended family.

I am pleased to read that a lawyer is challenging the return of those who were victims of the sinking of the asylum boat to immigration detention offshore. I hope that the challenge succeeds. Federal government, please extend mercy: it would make me think better of you. To think I hoped you’d be more compassionate than the other lot!

By the way, I still think an overhaul of the way in which we look at asylum seekers and allow offshore applications is necessary. It’s a hell of a lot better than either (a) locking people up or (b) giving them incentives to risk their lives on leaky boats or (c) an unholy mix of the two.

(There is a petition seeking mercy for Seena here, for those who feel as I do).

19 Comments

A little while back I saw a case of what I’d call mercy by harsh sentencing in the US.

Old guy (late 60s or 70s I think), homeless, no priors, recently diagnosed with terminal illness, wheelchair-bound, robs a bank of $70 – copped a 20 year prison sentence – the max penalty. At least he’ll have a roof, food, dry blanket and some medical care. I reckon that was what the judge was thinking. (And more expensive to the state than adequate social welfare).

The mandatory sentencing on judges, becoming ever more popular, precludes mercy – and administrative tribunals are staffed with people who generally have even less scope – particularly in cases where there is base political pressure on the agency.

While judges have a solid framework on mercy, and don’t need detailed instructions, I wonder if there is detailed guidance, explanatory memoranda, etc for the non-legal public servants shuffling papers in areas where the principles you list could be applied and make a difference where needed.

Ministerial prerogatives can provides appropriate mercy, but we’ve seen cases where well-connected crooks have received largesse for no good reason – Vanstone (I think) granting residency to a person who should have got a FAIL on character grounds.

All the categories appear reliant on an aspect of wrongdoing on the part of the recipient of mercy.

The amount of choice the child has in this matter would be arguably nil due to parental choices being imposed. As such I would argue there is no intention to be illegally present in the country.

I am in this instance I am applying the tort of trespass to an entire sovereign nation which I admit is being overly simplistic. The child has trespassed by being here yet there is no fault applied as there was no intention to do so. I find accidental trespass as a defense for Senna in this particular instance.

Using this simplistic idea I am comfortable removing questions of fault and wrong doing from the child. As such I feel the child has done no harm and is in fact a victim. It is not merciful to help a fellow human who is the victim of the actions of well meaning parents?

In using this argument I must ignore the strict liability of being in the country without leave.

I tend to think the strict liability that leads to deprivation of liberty is akin to a mandatory sentence for a criminal act. We in effect convict persons to a mandatory period of prison on the strict liability offence whereby for release they must apply for parole.

The courts have already concluded a non-citizen may be held indefinitely so the mandatory sentence is life unless you are able to return to a home country or meet the requirements for early release.

I understand there are some cogent reasons for detention yet I would think we would be best served looking for alternate methods to satisfy these reasons. I join in the thought there must be a better way.

Nothing to do with the instant case, but categories 1 and 4 have no basis in law, and nor should they. If they did, 1 would mean no-one would ever get convicted (they all have the most beautiful sob stories) and 4 forgets that the crime is not against the victim, but against the state. Were it against the victim (and in the victim’s hands to absolvitor, as we say in Scotland), then we would return to a world of vendetta or what the Romans called the Lex Talionis, which really doesn’t require translation. The essence of punishment is not to compensate the victim (otherwise we’d be dealing with a tort, not a crime), but to protect society. A perpetrator can apologise, repay and plead until the cows come home, but these days, the law is most interested in stopping him from doing it again.

Must be nice to be a philosopher, and never have to think about the shitty consequences attached to one’s latest piece of pie in the sky.

Apparently Seena will be released into the care of family in Sydney next week. But in the meantime he has to return to Christmas Is. According to Minister Bowen this is to keep together the group that came to Sydney for funerals. Sheer madness if not bureaucratic bastardry.

I partially agree with skepticlawyer in relation to ground 1. I get sick of hearing about tragic childhoods in sentencing – not because I don’t believe the truth of them but because often the defendant is being sentenced for the Nth time and again expects leniency on the basis of their past. I think that after an initial granting of mercy (perhaps on the first occasion the defendant faces a custodial sentence) then personal responsibility should take over and no further leniency is warranted

Well as a non-lawyer I must admit to being disappointed that this post did not receive more comment. Perhaps it was because events overtook the consideration in the case of this boy – and I’m glad of that.

I’d be very interested to at least be given specific examples supporting each of the four concepts LE outlines. That said:

1) I could agree with this only if the perpetrator’s upbringing and present life actively promoted breaking of a law, in order to simply survive – something like stealing to eat as one’s only source of food?

2) Is this the concept of self defence? Or am I being led to that by LE’s particular example?

3) Makes me think of the Lockerbie bomber. And given that any full expression of justice probably “cruelly exacerbates” the perpetrator’s future prospects, I’m having a hard time imagining how this does not apply to any punishment.

4) Is total crap to me, but I’d appreciate an example of the application of this principle.

Therefore I accept 2 if it means what I think it means, but I don’t think any of this applies to the child in any event. He had about as much free will to contravene our laws as a canary or a goat bought along by his father. I get to the same place as LE, and I’m pleased it is working out, but a different layman’s perspective has been applied.

Further thought – maybe 3 is about things like mercy killings? In which case my response is that this is more a misapplication of inadequate laws which need to be addressed. A “mercy” judgement or sentence is quite insulting to my own beliefs in this area. Says the layman.

Thanks Unknown. Both examples have holes in them to me after several readings. The first one has too much premeditation, and doesn’t report any other options; the second I’m really scratching over as to applicability of the rule. I’ll have to read it again.

RipleyP, I quite like the idea of trespass as the wrong which is being committed in these situations. It’s analogous to someone approaching your property saying “Can I get help?” You don’t answer (or perhaps you answer no), but they come on your property anyway.

It is akin to a mandatory sentence for a non-criminal act, which throws into relief the problem at the heart of immigration detention.

Unknown @ 5: I agree with you. In the first instance, if someone commits a crime and has had a terrible upbringing, then maybe one can extend mercy (particularly because being incarcerated may lead to a worsening of the person’s problems, not reform). If someone is a recidivist, then I think mercy shouldn’t be extended. It also depends on the crime. Say that there is a paedophile who argues that he has committed a crime because he himself was abused as a child (I’ve seen someone try this in court). I believe that people who suffer abuse as a child are statistically more likely to be perpetrators, but nonetheless I don’t believe that this is a reason to extend mercy. In that case, the deterrent and punitive aims of the law are paramount.

KVD I am so glad that someone thought this post should be more commented upon! 🙂 As to principle 4, I am thinking of a case I read about a few years ago where a guy in his early 20s was driving with his best mate, was speeding and crashed, killing his best mate and injuring himself. There is no doubt that the driver was sincerely repentant, and that he had expressed this to the family of his dead friend. The dead friend’s family had furthermore accepted the apology. Part of the aim of criminal law is not just punishment and deterrence, it is also vindication of the victim’s rights and the rights of the victim’s family. In that case, the perpetrator had acknowledged his wrong and apologised publicly, thus meaning the family felt vindicated.

The speeding driver committed a tort, though, not a crime. Tortious liability is meant to be to the victim.

I do think that DD causing death is on the bleedy boundary between crime and tort, but the refusal of juries to convict when it is conceived of as ‘automative manslaughter’ (or analogous phrase; the name varies from jurisdiction to jurisdiction) is a sign that people are more inclined to see it as a tort rather than a crime.

I think that thinking about it as trespass can be useful, but not in the way you are all thinking of!

After all, what is the legal position of a trespasser in the act?

For that reason it is nothing like mandatory sentence for a non-criminal act, since the wrong itself is the physical presence on the territory. Anything short of detention would be allowing the wrong to persist, more like letting a convicted burglar retain the proceeds until sentencing!

None of that, btw, is intended to belittle the human, legal and practical difficulties raised by immigration.

The contrast for me is the amount it costs to fly all our political leaders to every funeral of a Digger sacrificed on the altar of the US alliance, let alone the funeral of a footy player here in Tasmania last week. No-one ever queries what that costs and a day off politics and parliament. Where are our priorities ?

[email protected] Given what the rule of the Taliban did and would mean for the women and girls of Afghanistan, and the value in keeping one’s military battle-tested, the Afghan commitment seems fine to me, though can certainly cavil about tactics and strategy. Come to that, the value of the US in counter-balancing rising China is considerable: at least that is what every single state in the Asian Pacific region from Vietnam to Japan seems to think. (Even the vicious madness that is the North Korean regime likes to be able to triangulate between them.)

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